Gigya Widget End User Agreement

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE embedding, Posting OR USING any widget generated BY gigya’s wildfire technology (“gigya widget”). THIS Gigya Widget END USER AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF ANY Gigya Widget made available to you via a third party website or otherwise.  

gIGYA is willing to license a Gigya Widget to you only upon the condition that you accept all the terms contained in this Agreement.  By embedding, Posting OR USING A Gigya Widget ON YOUR WEBSITE OR SOCIAL network SITE web PAGE (“site”), you indicate that you have read and understand this Agreement and accept all of its terms without limitation.  If you do not accept all the terms of this Agreement you will not be AUTHORIZED to embed, Post OR USe any Gigya Widget.  If you agree to these terms on behalf of a business, you represent and warrant that you have authority to bind that business to this Agreement, and your agreement to these terms will be treated as the agreement of the business.  In that event, “you” and “your” refer herein to that business. 

1.             License.

(a)           Grant.  Subject to the terms of this Agreement, Gigya grants you a non-exclusive and non-transferable license to embed and display the Gigya Widget(s) on your Site.  Gigya reserves all rights in the Gigya Widget not expressly granted to you in this Agreement. 

(b)           Restrictions.  Except as expressly specified in this Agreement, you may not: (i) use, copy, modify or distribute a Gigya Widget for any purpose; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute a Gigya Widget to any third party; (iii) make the functionality of a Gigya Widget available to multiple users through any means; or (iv) use the Gigya Widget in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement. 

2.             Proprietary Rights. You agree that Gigya, its affiliates and licensors own all right, title and interest in and to any Gigya Widget including any content provided in or accessible through a Gigya Widget, including without limitation all intellectual property rights therein. You will not remove, delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on or incorporated in a Gigya Widget.

3.             Widget Usage Requirements.   You agree to comply with all applicable laws, rules and regulations when using a Gigya Widget.  You will not, directly or indirectly:

(a)           Alter, modify, delete or otherwise interfere with any content, advertising, services and/or features contained on or accessible though a Gigya Widget, including without limitation, a Gigya Widget’s display features advertising and/or content delivery and display functionality, in each case, except as expressly permitted by the Gigya Widget. 

 (b)          Transmit, email or post by means of a Gigya Widget any material that contains software viruses.

(c)           Use a Gigya Widget to disseminate content that infringes a third party’s intellectual property rights.

4.             Representations and Warranties.  You represent and warrant that: (i) you have all the rights, power and authority (including without limitation all required third party licenses or permissions) to engage in the activity contemplated by this Agreement; (ii) the Site will not contain material which is unlawful, obscene, harmful, threatening, harassing, defamatory or hateful or that contains objects or symbols of hate, invades the privacy of any third party, violates any third party’s intellectual property rights, contains any pornography, erotica, child pornography or child erotica, is deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitutes hate speech or is otherwise objectionable in the opinion of Gigya; and (iii) you are responsible for all activity related to or content provided on your Site, and Gigya disclaims any and all liability relating thereto. 

5.             Disclaimer.  You ASSUME ALL RESPONSIBILITY AND RISK OF USE OF any Gigya Widget.  All Gigya WidgetS Are provided to you "AS IS" WITHOUT any WARRANTIES OF ANY KIND. Gigya DOES NOT WARRANT THAT any Gigya Widget WILL MEET YOUR REQUIREMENTS OR THAT any gigya Widget WILL BE ERROR-FREE. Gigya EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Gigya OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.

6.             Term and Termination.

(a)           This Agreement remains effective until terminated by either party. Gigya may terminate this Agreement without notice, at any time and for any reason.  You may terminate it at any time by removing and/or deleting the Gigya Widget from your Site.  This Agreement will automatically terminate without notice if you breach any term of this Agreement. 

(b)           Upon any termination, you will promptly remove and/or delete any Gigya Widget from your Site and destroy any copies of any Gigya Widget in your possession or control.  Sections 2, 4, 5, 6(b), 7, 8 and 9 will survive any termination of this Agreement.

7.             Indemnity.  You agree to defend, indemnify and hold Gigya and its officers, directors, and employees harmless from and against any loss, liability, costs or expenses (including but not limited to reasonable attorneys’ fees) arising from or incurred as a result of: (i) any third party claims, to the extent that such claims relate to or are based on your breach of this Agreement; (ii) your embedding, posting or use of any Gigya Widget; and (iii) your Site and any claim that it or any content therein infringes any third party’s intellectual property rights.

8.             Limitations of Liability.  IN NO EVENT WILL GIGYA BE LIABLE TO YOU FOR ANY DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR the cost of procuring substitute products ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR DISTRIBUTION OF A Gigya Widget, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT GIGYA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  IN ANY CASE, GIGYA’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS OF THE FEES THAT YOU PAID FOR any Gigya Widget (IF ANY). Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

9.             General Provisions.  This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflicts of law rules or principles.  The United Nations Convention on Contracts for the International Sale of Goods will not apply.  You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Gigya’s prior written consent, and any attempt by you to do so, without such consent, will be void and of no effect.  Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.  Any notice or other communications to be given under this Agreement will be in writing and given (a) by Gigya  via email (in each case to the address that you provide), (b) posting on the Gigya  website located at http://www.gigya.com/  or (c) by you via email to legal@gigya-inc.com or such addresses Gigya may specify in writing.  The date of receipt will be deemed the date on which such notice is transmitted. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.  Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties.  If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Gigya  have executed a separate agreement.

10.          Contact Information.  If you have any questions regarding this Agreement, you may contact Gigya at support@gigya-inc.com